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Coalition v. Weber

United States District Court, D. Montana, Missoula Division

February 27, 2019

SWAN VIEW COALITION, et al., Plaintiffs,
v.
CHIP WEBER, et al., Defendants.

          ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE.

         Plaintiffs seek to enjoin the Glacier Loon Project pending appeal of the Court's December 11, 2018 Order, (Doc. 104). (Doc. 107.) The motion is denied.

         Legal Standard A motion for an injunction pending appeal is considered under the same standard as a motion for a preliminary injunction. See Tribal Vill. of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir. 1988); Fed.R.Civ.P. 62(d). A party seeking an injunction must show (1) a likelihood of success on the merits, (2) it is likely to suffer irreparable harm, (3) the balance of equities favors an injunction, and (4) an injunction is in the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The last two factors merge when the federal government is the opposing party. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). A party seeking an injunction "must establish that irreparable harm is likely, not just possible." All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The other factors are then assessed on a sliding scale. Id. at 1135. For example, when the "balance of hardships tips sharply in the plaintiffs favor," an injunction may issue on a showing of only "serious questions going to the merits." Id.

         Analysis

         I. Likelihood of Success

         Plaintiffs appear to concede that while they cannot show they are likely to succeed on the merits, they at the very least raise serious questions as to those issues. (Doc. 108 at 22.) While many of Plaintiffs' arguments are merely a rehash of their summary judgment position, they raise some good points. First, the dynamic status of the wolverine has complicated the evaluation of the Project's impact on the species. Second, while Plaintiffs did not previously argue or brief their assertion that amending a deadline under the Endangered Species Act ("ESA") cannot alter a deadline under the National Forest Management Act ("NFMA"), they raise that challenge now. As argued by Plaintiffs, there does not appear to be precedent directly on point. See Esparza v. SmartPay Leasing, Inc., 2017 WL 6731595, at *2 (N.D. Cal. 2017). Though this argument may be waived, see Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 846 (9th Cir. 2013) (discussing administrative exhaustion), Plaintiffs have "assert[ed] specific grounds as to where or why this Court erred in its decision," Native Ecosystems Council v. Marten, 2018 WL 4301371, at *1 (D. Mont. Sept. 10, 2018). Finally, Plaintiffs emphasize that this Court labelled the 2014 grizzly bear decision a "close call." (See Doc. 92 at 9.) As a result, Plaintiffs have raised serious questions on the merits.

         II. Irreparable Harm

         Plaintiffs must show that they are likely to suffer an irreparable harm in the absence of injunctive relief. All. for the Wild Rockies, 632 F.3d at 1135. Such a showing is required even in cases involving an ESA challenge. See Cottonwood Envt'l Law Or. v. U.S. Forest Serv., 789 F.3d 1075, 1090-91 (9th Cir. 2015). That said, "establishing irreparable injury should not be an onerous task for plaintiffs," id. at 1091, and the standard is met so long as a plaintiff can show that a "specific project[] will likely cause irreparable damage to its members' interests," id. at 1092.

         Plaintiffs argue that the Project will interfere with "the naturally functioning ecosystems of the Forest and Project analysis areas, in particular their interests in looking for, viewing, studying, and enjoying elk, grizzly bears, wolverine, and lynx undisturbed in their natural surroundings." (Garrity Decl., Doc. 108-1 at ¶ 4.) Plaintiffs further refer to "[l]ogging, burning, road-building, road use, and road reconstruction" as "ecological and esthetic degradations" that "will render the area unsuitable for [Plaintiffs' members']... esthetic, recreational, scientific, spiritual, vocational, and educational activities." (Id. at ¶ 6.)[1] In later-provided declarations, Plaintiffs also raise general concerns about how a logging and treatment project may affect Lindbergh Lake and its surrounding area. (Page Decl., Doc. 110; Giles Decl., Doc. 111.)

         Nevertheless, Plaintiffs fail to identify specific harms associated with the Project. While they provide a general list of ground-disturbing activities, they fail to show how the activities of this specific Project will affect their members. See Sierra Forest Legacy v. Sherman, 951 F.Supp.2d 1100, 1111 (E.D. Cal. 2013). The argument that logging is per se enough to warrant an injunction has been rejected. Earth Island Inst. v. Carlton, 626 F.3d 462, 474 (9th Cir. 2010). Moreover, the schedule of ground-disturbing is greatly limited by the Swan Valley Grizzly Bear Conservation Agreement. (See King Decl., Doc. 109-1 at ¶¶ 8, 9 10, 16; Ruby Decl., Doc. 109-4 at ¶ 5.) Plaintiffs fail to show specific activities that fall within the appellate timeframe would permanently affect their interest. That is especially important because over the long term, the Project involves stewardship contracts that will require "road decommissioning, re-contouring, fuels reduction and slashing and pre-commercial thinning" as part of the logging projects. (King Decl., Doc. 109-1 at ¶ 3; Dowling Decl., Doc. 109-2 at ¶ 6; Richardson Decl., Doc. 109-3 at ¶ 8.) Such activities will ultimately reduce sediment, benefit wildlife, and help restore watersheds. (Dowling Decl., Doc. 109-2 at ¶¶ 5, 7, 11, 21.)

         Additionally, treatment activities are expected to "facilitate regeneration of desired species - western larch, western white pine, and ponderosa pine" and improve overall forest health. (See Id. at ¶¶ 5, 29.) And, as discussed in more detail below, Defendants have shown that Project activities will benefit a number of the protected species and have minimal short-term impacts. Defendants also identify a number of potential harms that may occur if the Project is delayed any further, including deferring long-term habitat improvement, (Ruby Decl., Doc. 109-4 at ¶¶ 8, 14), and increased wildfire risk that threatens the entire natural landscape, (Dowling Decl., Doc. 109-2 at ¶¶ 18, 19; Ruby Decl., Doc. 109-4 at ¶¶9, 12, 13).

         In light of Plaintiffs' general allegations about the impacts of the Project and the limitations placed on Project activity, Plaintiffs fail to show irreparable harm.

         III. Balance of Equities and Public Interest

         Finally, Plaintiffs must show that the balance of the equities tip sharply in their favor. All. for the Wild Rockies, ...


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